Release date: 07/26/2021
In the matter of an Application pursuant to subsection 280(2) of the Insurance Act, RSO 1990, c I.8., in relation to statutory accident benefits.
Between:
Thusyanthy Gunanathan
Applicant
and
Sonnet Insurance Company
Respondent
DECISION
ADJUDICATOR:
Jesse A. Boyce, Vice-Chair
APPEARANCES:
For the Applicant:
Nancy Sarmento Barkhordari, Counsel
For the Respondent:
Jason Frost, Counsel
Modasir Rajabali, Counsel
HEARD:
By way of written submissions
OVERVIEW
1The applicant was injured in an accident on September 25, 2017, and sought various benefits from the respondent, Sonnet, pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 20101 (''Schedule''). Sonnet denied the benefits in dispute on the basis of its determination that the applicant’s accident-related impairments were predominantly minor injuries and therefore subject to treatment within the Minor Injury Guideline (“MIG”). The applicant disagreed and submitted an application to the Tribunal for resolution of the dispute.
ISSUES IN DISPUTE
2The following issues are in dispute:
i. Did the applicant sustain predominantly minor injuries as defined by s. 3 of the Schedule and is therefore subject to treatment within the MIG?
ii. Is the applicant entitled to receive a medical benefit in the amount of $2,288.50 for chiropractic services (OCF-18) from Fast Aid Rehabilitation Centre dated April 25, 2018, denied by the Respondent on May 1, 2018?
iii. Is the applicant entitled to interest on any overdue payment of benefits?
iv. Is the applicant entitled to an award under s. 10 of O. Reg. 664?
RESULT
3The applicant has not demonstrated that her accident-related impairments warrant removal from the MIG. The treatment plan in dispute is not reasonable and necessary, no interest is payable, and a s. 10 award is not appropriate.
ANALYSIS
Applicability of the MIG
4Section 18(1) of the Schedule provides that medical and rehabilitation benefits are limited to $3,500.00 if the insured sustains impairments that are predominantly a minor injury in accordance with the MIG. Section 3(1) defines a “minor injury” as “one or more of a sprain, strain, whiplash associated disorder, contusion, abrasion, laceration or subluxation and includes any clinically associated sequelae to such an injury.” An insured may be removed from the MIG if they can establish that their accident-related injuries fall outside of the MIG or, under s. 18(2), that they have a documented pre-existing injury or condition combined with compelling medical evidence stating that the condition precludes recovery if they are kept within the confines of the MIG. The Tribunal has also determined that chronic pain with functional impairment may warrant removal from the MIG. In all cases, the burden of proof lies with the applicant.
5The applicant submits that her pre-accident history was remarkable for diabetes and Lupus, warranting removal from the MIG under s. 18(2). Further, as I understand it, her position is also that she suffers from chronic pain that warrants removal from and treatment beyond the MIG. To this end, she relies on various clinical notes and records from her family physician, Dr. Mahendira, an x-ray of her spine, a report and her treatment with chronic pain specialist Dr. Sennik and Dr. Harris and her inability to pursue work functions as evidence that she sustained impairments that require treatment beyond the MIG.
6In response, Sonnet asserts that the applicant has not met her burden, as she sustained minor injuries as a result of the accident. It submits that the applicant was diagnosed with myofascial sprain and strain-injuries by Dr. Sennik over two years post-accident that had not altered her activities of daily living or function.
7I agree with Sonnet and find that the applicant has not demonstrated that her accident-related impairments warrant removal from the MIG. The actual physical injuries identified in the medical documentation are all sprain and strain-type impairments that fall squarely within the MIG. Dr. Sennik, the applicant’s chronic pain specialist, confirmed that the applicant sustained myofascial sprain and strains in his September 16, 2019 report. Similarly, there is no evidence of a tear and the August 30, 2019 x-ray report revealed “mild narrowing” of the L1-L4 discs with unremarkable alignment, well-maintained disc spaces, no fractures and unremarkable SI joints. There is no evidence to suggest that the applicant’s accident-related physical injuries fall outside of the minor injury definition.
8With regard to s. 18(2), an applicant may be removed from the MIG if they have evidence of a pre-existing condition, documented by a medical practitioner prior to the accident, that will preclude maximal medical recovery if they are kept within the confines of the MIG. Here, the applicant asserts that her pre-existing conditions of diabetes and Lupus justify removal from the MIG. While these conditions are documented in the medical evidence, the applicant did not direct the Tribunal to a medical opinion that these conditions would preclude her maximal medical recovery if she is kept within the MIG, as is the requirement of s. 18(2). It is not sufficient to simply have a pre-accident condition to escape the MIG on this ground.
9The Tribunal has also determined that an applicant may escape the MIG if they suffer from chronic pain that causes functional impairment. Here, despite being referred to Dr. Sennik, the applicant has seemingly never been diagnosed with chronic pain or chronic pain syndrome. While a diagnosis is not strictly required, in the absence of same, the applicant must demonstrate that the alleged pain is of a severity and consistency that causes functional impairment. On the evidence, where it is the applicant’s burden to prove that treatment beyond the MIG is required, I find the applicant has not demonstrated that her pain causes functional impairment necessitating removal from the MIG.
10The September 16, 2019 Dr. Sennik report on which the applicant relies is not particularly supportive of a chronic pain diagnosis requiring removal from the MIG. The first page review of her primary complaints, being cervical pain, right shoulder pain and low back pain indicates that while she reports subjective pain, there is “no limitation” in her activities of daily living. The physical examination revealed “no anatomic abnormalities” in any of her cervical spine, lumbar spine or shoulder, she demonstrated “full” or “normal” range of flexion and abduction in every motion and power test conducted and tenderness was either normal or absent on all tests. Dr. Sennik’s impression was that her “pain was in keeping with myofascial sprain/strain post-MVA” which is not a diagnosis of chronic pain and, in any event, clearly falls within the definition of a minor injury. Where Dr. Sennik, a chronic pain specialist, stated that there is “no need for any further treatments”, I find it difficult to accept that the applicant has chronic pain with functional impairment requiring treatment outside of the MIG when her own chronic pain specialist offered little to support her claim.
11While I am alive to the applicant’s subjective reporting, this finding is further supported by the more recent patient encounter notes of Dr. Harris from January 29, 2020 that also found “myofascial sprain/strain post-MVC”, “no anatomic abnormalities”, no range of motion issues and a “high” level of function. Dr. Harris’s February 26, 2020 note indicates that the applicant was “excellent” after taking Lyrica and that her “pain almost completely resolved.” At 2.5 years post-accident, where two chronic pain specialists have not diagnosed chronic pain or identified functional impairment as a result of pain and only diagnosed sprain and strain injuries that are relieved with medication, I agree with Sonnet that, on balance, the applicant has not demonstrated that she suffers from chronic pain justifying removal from the MIG.
12Accordingly, for these reasons, I find the applicant has not demonstrated on a balance of probabilities that her accident-related impairments warrant removal from the MIG. Having determined that the applicant has not demonstrated that removal from and treatment beyond the MIG is required, it is my understanding the limits of the MIG have been exhausted. Therefore, an analysis of whether the treatment plan in dispute is reasonable and necessary is not required. As no benefits are overdue, no interest is payable under s. 51.
Section 10 Award
13In submissions, the applicant also sought to add the issue of an award under s. 10 of O. Reg. 664, submitting that Sonnet unreasonably withheld the payment of her benefits and did not conduct a s. 44 assessment to address her claim. Under s. 10, the Tribunal may award up to 50% of the total benefits payable if it determines that the insurer unreasonably withheld or delayed the payment of benefits.
14While an award may be added at any time, I find an award is not appropriate here. First, it is well-settled that the applicant bears the burden of demonstrating that removal from the MIG is required. Where the applicant produced no objective evidence that she sustained an impairment that requires treatment beyond the MIG and where two chronic pain specialists only diagnosed sprain and strain injuries, Sonnet is correct that it had no positive obligation under the Schedule to conduct a s. 44 assessment to speak to the MIG. Second, and in any case, I agree with Sonnet that the applicant has not demonstrated that she sustained accident-related impairments that warrant removal from the MIG or treatment beyond it. In this vein, it cannot be said then that Sonnet unreasonably withheld or delayed payment in order to attract a s. 10 award.
CONCLUSION
15The applicant has not demonstrated that her accident-related impairments warrant removal from the MIG. The treatment plan in dispute is not reasonable and necessary, no interest is payable, and a s. 10 award is not appropriate.
Date of Issue: July 26, 2021
Jesse A. Boyce, Vice Chair
Footnotes
- O. Reg. 34/10, as amended.